Employment Relations Authority – Dispute – Fingerprint scanning technology

At issue was whether the employer could require its employees to clock in and clock out using fingerprint scanning technology.

The employer bought and introduced a time keeping and attendance system that used fingerprint scanning technology. In doing so, the employer said it sought to collect accurate data to inform payment of wages and entitlements. The employee was one of about 30 maintenance workers at one of the employer’s workplaces who refused to use the technology. The employee considered the employer was intruding upon his privacy by requiring his biometric information. The employee argued the employer would have to vary the collective agreement before it could do so.

The employer asked the Authority to resolve the dispute. The Authority declared that the employer could lawfully and reasonably instruct the employees to use the fingerprint scanning technology for the purposes of recording time and attendance at work (see paragraph 92).

The Authority noted that:

Employees were required to follow lawful and reasonable instructions of their employers. This was an implied term of every employment agreement (see paragraph 24).
Approximately 8000 employees of the employer were already using the technology. Only these 30 employees were not (see paragraph 8).
The fingerprint scanning technology system used offered the protection of encryption. The risk of the security measures being defeated seemed “very slight” (see paragraphs 49–50).
The collection of the data complied with information privacy principle 1 (external link) in the Privacy Act 2020, because the personal information was being collected for a lawful purpose, and was necessary for that purpose (see paragraphs 52–56).
The collective agreement did not mention timekeeping or attendance technology or any limitations on the use of it. The Authority found that a variation was not necessary when the employer was giving lawful and reasonable instructions because “consent was not a precondition for giving an instruction” (see paragraphs 68, 70).
The ability of employers to give lawful and reasonable instructions was limited by the need for consultation and good faith behaviour. In this case, the employer had allowed the employees express their views on the fingerprint scanning technology and had adequately considered those views (see paragraphs 75, 79, 83).
The employer had good business reasons to use the fingerprint scanning technology (see paragraph 86).

Fonterra Brands (New Zealand) Ltd v Lanigan [2023] NZERA 197 [PDF 63KB][PDF 63KB]